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England and Wales Court of Appeal (Civil Division) Decisions
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Cite as:  EWCA Civ 176
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION (INTELLECTUAL PROPERTY)
His Honour Judge Fysh QC (sitting as a Judge of the High Court)
HC 04 C035805
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE JACOB
LORD JUSTICE LLOYD
| Mastercigars Direct Limited
|- and -
|Hunters & Frankau Limited
Corporacion Habanos SA
(1) Mastercigars Direct Limited
(2) Christopher John du Mello Kenyon
Part 20 Claimant/
Part 20 Defendant/ Appellant
Part 20 Defendant
WordWave International Ltd
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No: 020 7421 4040 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
for the Appellant Mastercigars Direct Limited
Mr Richard Arnold QC and Mr Mark Vanhegan (instructed by Messrs Mishcon de Reya) for the Respondent Corporacion Habanos
Hearing dates : 30-31 January and 1 February 2007
Crown Copyright ©
Lord Justice Jacob:
The Background facts
1. Corporacion Habanos SA ("HSA") is a Cuban joint venture company. 50% is owned by European interests and 50% owned by Empresa Cubana Del Tabaco ("Cubatabaco", a Cuban subsidiary of Tabacuba, the Cuban state tobacco company). HSA is the owner of the trade marks in suit. They are listed in fn. 26 of the judgment below and include many long-established world famous names, such as H. Upmann and Punch. HSA has been granted by the Cuban government the exclusive rights to buy, sell and market nationally and internationally rolled tobacco of Cuban origin in any form or type. HSA is and was at the material times run on a commercial basis. HSA occupies a central role in the Cuban tobacco industry: it reviews and fixes the price of hand made Cuban cigars ("habanos") both for export and local sale; it determines the brand positioning for habanos, advertising and general sales structure and all aspects of local marketing strategy; it determines all aspects of the packaging and trade mark use - and more.
2. Hunters & Frankau Ltd ("H&F") was appointed by Tabacuba in 1990 as the sole and exclusive distributor for, inter alia, the UK to import, sell and distribute habanos. Upon the incorporation of HSA in September 1994, and the acquisition by HSA of the export and distribution rights from Cubatabaco, H&F entered into an exclusive distributorship agreement with HSA in September 1994. On 30 June 2002 HSA and H&F entered into a new 9.5 year exclusive distributorship agreement.
3. Mastercigars Direct Ltd ("MDL") was incorporated by Mr Kenyon on 14 June 2001. Mr Kenyon is the beneficial owner of the company, and its sole director. The business of MDL is to import cigars, and in particular Cuban cigars, into the United Kingdom for resale here in competition with H&F. Part 20 proceedings for infringement have been stayed as against Mr Kenyon pending the outcome of the claim against MDL.
Cigar production in Cuba
4. The tobacco for Cuban cigars is grown on farms in Cuba, more than 70% of which are privately owned. The cigars are then manufactured in factories, most of which are owned by the Cuban Ministry of Agriculture and managed by Tabacuba. The habanos are made individually in the factories by experienced rollers. Their quality is assessed throughout all stages of their production.
5. The habanos once packaged by the factories are then supplied to HSA's warehouse. HSA then performs further quality control checks on the cigars. HSA's warehouse is split into two main sections, one for cigars for export and the other for cigars to be sold domestically. There is no difference in the quality standards applied to cigars for sale in Cuba as opposed to those for sale abroad. However every box of habanos which is supplied by HSA for sale through outlets in Cuba has, since about April 2003, borne a holographic seal. These seals are applied to the cigar boxes in HSA's warehouse. If the hologram seal is removed from these boxes it leaves a noticeable mark. Habanos which are for sale abroad do not have the holographic seal applied to them.
Sales of habanos by HSA
6. HSA does not sell direct to consumers in Cuba or worldwide, rather it sells the habanos through a number of outlets in the following manner.
7. Foreign sales channel. HSA has the relevant Cuban government authorisations and registrations to export habanos commercially. All commercial exports of cigars from Cuba for sale through foreign sales channels are made by HSA to its various overseas distributors, who are each granted, pursuant to a written distribution agreement, an exclusive territory in which they are authorised to use HSA's trade marks and the trade marks which HSA has been authorised to use. One such distributor is H&F.
8. Domestic (Cuban) sales channel. Within Cuba, habanos are sold through outlets. There are approximately 230 such outlets in Cuba. None of these is owned or operated by HSA or a subsidiary of HSA. Since about 2005 HSA has delivered the habanos to each of these outlets directly. Prior to this date deliveries were made by intermediaries, although the outlet known as "La Casa del Habano" on the Quinta Avenida in Havana had been receiving deliveries directly from the HSA warehouse since about 2003.
9. Every sale of habanos in Cuba must be recorded on a standard form invoice printed for security purposes, with a transverse water mark, HABANOS SA, visible under ultra violet light. HSA sends out blank books of standard form invoices. The invoices bear the title factura de venta de habanos (translation Havana cigar sales invoice). The facturas are in triplicate. The facturas have spaces for the name, nationality and passport number of the purchaser to be filled in. Upon purchase of the habanos, the salesperson completes the factura, provides the customer with the original and one copy and the outlet keeps the second copy. The outlet does not send that copy or any copy of the factura to HSA although HSA is able, if it wishes, to obtain copies of facturas the outlet would in practice comply with a request by HSA for these even though it has no strict legal entitlement.
La Casa del Habano.
10. There is a network of outlets in Cuba, and elsewhere in the world, which operate under the name "La Casa del Habano" (literal translation: Havana Cigar House). In Cuba there are approximately 32 such outlets. Outside Cuba these outlets are owned and operated by various entities, none of which are owned, in whole or in part, by HSA. The majority of the Casas del Habano in Cuba are owned and operated by a company called Caracol. Two Casas del Habano are owned and run by Sociedades Clubes y Restaurantes Continental SA ("Continental"), which is a company within the Cubalse group of companies (and hence is referred to by the Judge in the Judgment as "Cubalse").
11. The operator of each such outlet has entered into a Franchise Agreement with HSA pursuant to which the operator is licensed to use the "La Casa del Habano" name which is owned by HSA. In addition the operators enter into a Rolled Tobacco Supply Agreement ("RTSA") pursuant to which HSA supplies the cigars to the relevant Casas.
12. Each overseas Casa del Habano is required to purchase the habanos from the relevant exclusive distributor in the territory in which the Casa del Habano is located. In Cuba the outlets must purchase from HSA (as set out above).
13. The Franchise Agreement does not grant the franchisee the right to apply any of HSA's cigar trade marks to habanos (or any cigars) or control in any manner the nature or quality of the habanos sold by them under those trade marks. Clause 11.2 of the Franchise Agreement provides that "Under no circumstances may the Franchisee re-sell the contractual products to another territory or re-sell these as a wholesaler". Clause 8.2 of the RTSA provides: "[The Franchisee] is not the broker, attorney, agent or representative of [HSA] for any purpose, and whenever [the Franchisee] refers to his relationship with [HSA] he will clearly state his capacity as CUSTOMER independent from SUPPLIER, with no authority or power to commit [HSA] or to enter into agreements on his behalf in any way for any purpose."
13A. In the case of the RTSA with the outlet at Quinta Avenida operated by Continental: the PRODUCTS covered by the RTSA are identified as rolled cigars made in Cuba and flake: clause 1.1. The TERRITORY covered by the RTSA is identified as specified outlets: clause 1.3. HSA has the right to inspect the outlet at any time to ensure compliance with the obligations set out therein: clause 2.4. Continental undertakes not to manufacture, distribute or favour products competing with the PRODUCTS unless otherwise agreed in writing by the parties: clause 3.6. It is required to report to HSA, when HSA so requests, on sales, market development and any events and situations conducive to enhancing sale of the PRODUCTS: clause 3.10. It is required to pay HSA in US dollars 30 days after delivery of the PRODUCTS for the full price of the PRODUCTS that have been invoiced and delivered by HABANOS plus 2% for distribution: clause 6.2. Continental is authorised to use the TRADEMARKS on or in connection with the PRODUCTS under the terms of the agreement: clause 9.1. Continental is prohibited from removing, altering or hiding the TRADEMARKS, selling the PRODUCTS under any other brand or trademark other than the TRADEMARKS or using the TRADEMARKS on or in connection with products other than the PRODUCTS: clauses 9.2-9.4.
Sales of habanos in Cuba to foreigners
14. There are a number of legal restrictions imposed on a foreigner who wishes to take habanos out of Cuba. Resolution 41/2003 (which was made pursuant to Law Decree 162 on Customs) provides:
(1) if cigars are carried loose (i.e. not in their sealed packaging), the traveller may carry up to 23 through Customs without having to present a factura;
(2) if the traveller wishes to take out more than 23 cigars:
(a) the cigars have to be in their original closed packaging showing the domestic hologram sticker; and
(b) the traveller must provide Customs with evidence that the purchase was legal by presenting the factura.
15. In addition there is an "informal" arrangement between HSA and the outlets in Cuba whereby HSA imposes a restriction on the maximum value of a purchase which any one individual can make on the occasion of any one visit to any given retail outlet. In relation to the Casas del Habano this limit is 25,000 CCU or roughly $25,000; but at the other outlets in Cuba (over 200), the limit is $2,000.
The relationship between HSA and Continental a.k.a Cubalse
16. Both HSA and Continental were at the material times separate companies operating in accordance with the laws and regulations of the Cuban state.
devoted a great deal of meticulous attention to the counterfeiting case. It was immaculate in the sense that he went to every detail. No stone was left unturned.
By contrast, submitted Mr Hobbs, the judge had dealt with the parallel imports case without properly considering the facts.
The registered trade mark shall confer on the proprietor exclusive rights therein. The proprietor shall be entitled to prevent all third parties not having his consent from using the in the course of trade [any sign]
The trade mark shall not entitle the proprietor to prohibit its use in relation to goods which have been put on the market in the Community under that trade mark by the proprietor with his consent
This is the so-called doctrine of EEA-wide exhaustion of rights. It was strictly unnecessary to include it in the Directive, given that the rule had already been well established in Community law for all intellectual property rights years before the Directive. This was done in cases such as Deutsche-Grammophon v Metro  ECR 487 (copyright) Centrafarm v Winthrop  ECR  ECR 1183 (patents) and Centrafarm v Sterling Drug  ECR 1147 (trade marks).
 The effect of the Directive is therefore to limit exhaustion of the rights conferred on the proprietor of a trade mark to cases where goods have been put on the market in the EEA and to allow the proprietor to market his products outside that area without exhausting his rights within the EEA. By making it clear that the placing of goods on the market outside of the EEA does not exhaust the proprietor's right to oppose the importation of those goods without his consent, the Community legislature has allowed the proprietor of the trade mark to control the initial marketing in the EEA of goods bearing the mark (Case C-173/98 Sebago Inc v. GB-Unic SA  ECR I-4103, )
 It therefore appears that consent, which is tantamount to the proprietor's renunciation of his exclusive right under Article 5 of the Directive to prevent all third parties from importing goods bearing his trade mark, constitutes the decisive factor in the extinction of that right.
 If the concept of consent were a matter for the national laws of the Member States, the consequence for trade mark proprietors could be that protection would vary according to the legal system concerned. The objective of the same protection under the legal systems of all the Member States set out in the ninth recital in the preamble to Directive 89/104, where it is described as fundamental, would not be attained.
 It therefore falls to the Court to supply a uniform interpretation of the concept of consent to the placing of goods on the market within the EEA as referred to in Article 7(1) of the Directive.
 In view of its serious effect in extinguishing the exclusive rights of the proprietors of the trade marks in issue in the main proceedings (rights which enable them to control the initial marketing in the EEA) consent must be so expressed that an intention to renounce those rights is unequivocally demonstrated.
 Such intention will normally be gathered from an express statement of consent. Nevertheless it is conceivable that consent may in some cases be inferred from facts and circumstances prior to simultaneous with or subsequent to the placing of the goods on the market outside the EEA which in the view of the national court, unequivocally demonstrate that the proprietor has renounced its rights .
 It follows from the answer to the first question referred in the three cases C-414/99-416/99 that consent must be expressed positively and that the factors taken into consideration in finding implied consent must unequivocally demonstrate that the trade mark proprietor has renounced any intention to enforce his exclusive rights.
 It follows that it is for the trader alleging consent to prove it and not for the trade mark proprietor to demonstrate its absence.
 Consequently, implied consent to the marketing within the EEA of goods put on the market outside that area cannot be inferred from the mere silence of the trademark proprietor.
 Likewise, implied consent cannot be inferred from the fact that the trademark proprietor has not communicated his opposition to marketing within the EEA or from the fact that the goods do not carry any warning that it is prohibited to place them on the market within the EEA.
 Finally, such consent cannot be inferred from the fact that the trademark proprietor transferred ownership of the goods bearing the mark without imposing contractual reservations or from the fact that, according to the law governing the contract, the property right transferred includes, in the absence of such reservations, an unlimited right of resale or, at the very least, a right to market the goods subsequently within the EEA.
 A rule of national law which proceeded upon the mere silence of the trade mark proprietor would not recognise implied consent but rather deemed consent. This would not meet the need for consent positively expressed required by Community law.
i) Articles 5 to 7 of the Directive must be construed as embodying a complete harmonisation of the rules relating to the rights conferred by a trade mark and accordingly define the rights of proprietors of trade marks in the Community/EEA;
ii) national rules providing for exhaustion of trade mark rights in respect of goods put on the market outside the EEA by the proprietor or with his consent are contrary to Article 7(1) of the Directive as amended by the EEA Agreement;
iii) for there to be consent within the meaning of Article 7(1) such consent must relate to each individual item of the product in respect of which exhaustion of rights is pleaded;
iv) the trade mark proprietor's consent to the marketing of goods within the EEA may be implied where it is to be inferred from facts and circumstances which unequivocally demonstrate that the proprietor has renounced his right to oppose placing of the goods on the market within the EEA.
v) Implied consent cannot be inferred from:a) the fact that the proprietor has not communicated his opposition to marketing within the EEA to all subsequent purchasers of goods placed on the market outside the EEA; orb) from the fact that the goods carry no warning of a prohibition on their being placed on the market within the EEA;c) or from the fact that the proprietor has transferred the ownership of the goods without imposing a contractual reservation and that, according to the law governing the contract, the rights transferred includes, in the absence of such a reservation, an unlimited right of resale or at least a right to market the goods within the EEA.
 the heavy onus on a person alleging that consent has been given under Art. 7 in circumstances where the trademark proprietor has not used words which ordinarily signify consent."
He was not there laying down any general rule about onus of proof. Rather he was considering a specific onus on establishing that particular words which on their face do not signify consent do, as a matter of custom, have a special meaning of doing so (see -).
 a product which has been lawfully marketed in another Member State by the owner of the right himself, with his consent, or by a person economically or legally dependent on him.
 So, application of a national law which would give the trade-mark owner in the importing State the right to oppose the marketing of products which have been put into circulation in the exporting State by him or with his consent is precluded as contrary to Articles 30 and 36. This principle, known as the exhaustion of rights, applies where the owner of the trade mark in the importing State and the owner of the trade mark in the exporting State are the same or where, even if they are separate persons, they are economically linked. A number of situations are covered: products put into circulation by the same undertaking, by a licensee, by a parent company, by a subsidiary of the same group, or by an exclusive distributor.
 In the situations described above (paragraph 34) the function of the trade mark is in no way called in question by freedom to import. As was held in HAG II:
For the trade mark to be able to fulfil [its] role, it must offer a guarantee that all goods bearing it have been produced under the control of a single undertaking which is accountable for their quality (paragraph 13).
In all the cases mentioned, control was in the hands of a single body: the group of companies in the case of products put into circulation by a subsidiary; the manufacturer in the case of products marketed by the distributor; the licensor in the case of products marketed by a licensee. In the case of a licence, the licensor can control the quality of the licensee's products by including in the contract clauses requiring the licensee to comply with his instructions and giving him the possibility of verifying such compliance. The origin which the trade mark is intended to guarantee is the same: it is not defined by reference to the manufacturer but by reference to the point of control of manufacture.
 It must further be stressed that the decisive factor is the possibility of control over the quality of goods, not the actual exercise of that control. Accordingly a national law allowing the licensor to oppose importation of the licensee's products on grounds of poor quality would be precluded as contrary to Articles 30 and 36: if the licensor tolerates the manufacture of poor quality products, despite having contractual means of preventing it, he must bear the responsibility. Similarly if the manufacture of products is decentralised within a group of companies and the subsidiaries in each of the Member States manufacture products whose quality is geared to the particularities of each national market, a national law which enabled one subsidiary of the group to oppose the marketing in the territory of that State of products manufactured by an affiliated company on grounds of those quality differences would also be precluded. Articles 30 and 36 require the group to bear the consequences of its choice.
Unequivocal implied consent?
The overall position
 HSA is a major player in the Cuban economy. . Sr Garrido and Sra Garcia (HSA's former Marketing Director) gave evidence about HSA's central role in the Cuban tobacco industry. It reviews and fixes the price of habanos both for export and for local sale. It determines the brand positioning for habanos, advertising and general sales structure and all aspects of local marketing strategy. It determines all aspects of packaging and trade mark use and more.
Documents relating to: (i) the value of purchases from domestic Cuban outlets by overseas visitors to Cuba; and (ii) distribution by the Quinta Avenida Casa insofar as such documents show sales by the Quinta Avenida Casa to customers howsoever identified
Then no documents were supplied, the reason offered by a letter from HSA's solicitors, Mishcon de Reya, being:
We are instructed that there are no documents falling within paragraph 1(a) of the Order
Actual Control over Casa staff
The monthly meetings
Meeting of 16/12/03
Victor [Aguila HSA Manager domestic market]
Prices rose by 5% this month [and] many customers complained to our Management. Everyone was surprised/taken aback by this as this is a month when discounts are usually offered. However, this is something which we [will] have to face: the analysts who reached the conclusion about/[of the need for] a price rise did so with the aim of ensuring that Cuba's earnings would increase.
Caridad [Marquetti Manager of Cubalse operator of a major Casa, Quinta Avenida]
Last year, the prices of many bands (a reference to the band on the cigar) which were cheaper in Spain than in Cuba, were lowered. The Ministry of Tourism called on the Chains to submit a proposal as to how prices could be lowered, after which Habanos increased prices for all markets, including Spain.
Marcelino [Ben - HSA Manager domestic market]:
On the subject of price increases we should proceed with caution not all bands are able to withstand the same level of increase.
Osmany [Rios - Area manager for Cubalse, operator of Quinta Avenida]:
On the subject of prices, the most important thing is to fix them. There could be [some] Chains selling at the new price and others at the old price because the Resolution has [still] not been issued.
Resolution (of meeting) passed: To go to the Ministry of Finance to seek the Resolution and [then] fax it to all the Chains so that this problem can be resolved this week.
Julio [Pιrez HSA from "DTI" its "anti-counterfeiting brigade" as the Judge called it]:
The Chains need to keep tight control over/a tight check on invoices. Seals are being sold but there is not much demand. Our comrades in Border Customs are seizing counterfeit cigars. The "detection of offences" = the number of offences detected from 8th October to date has increased.
Victor ...HSA): This is a campaign which must be continued: we are up against a criminal element which has seen the sale of cigars as a means of making money.
Julio (HSA DTI):
Everything has been done with the idea of making it difficult to sell cigars illegally but at the same time the overseas market can determine who is buying in Cuba and create some competition.
Victor (HSA): This whole campaign in which we are engaged needs to be promoted, so that everyone gets to know about it.
Cιsar [Barrameda - Casas De Habano]:
We have approached Beatriz to promote it on the Habanos website.
Customs: Sometimes the traveller does not reach the shop. The important thing is for the leaflet issued to all travellers upon arrival in Cuba to be as clear as possible so that the traveller is not confused when he/she goes to make a purchase.
Marcelino (HSA): It is absolutely prohibited to give away a box to a customer in the shops: the cigars purchased by the customer must be issued in officially approved boxes.
Meeting of 11th February 2004
Josι Andrιs [Plas of Cubanacαn]:
Tourism is booming [and] Cuba is in need of our sales, so we need to sell and for that you have to distribute cigars to allow us to do what we have to do. We cannot remain closed for so many days for stock taking at the height of the tourist season. This type of stock taking is what we do in April which is when the low season begins.
Marcelino (HSA): Years ago, the argument put forward for this measure to be taken was that with the low prices buyers would gain/be at an advantage here and they [those who put forward the argument] won the day for setting up a parallel market. This was a justified, widespread complaint among all distributors.
Meeting of 21st April 2004
Moya (Senior Customs): We have a situation where a Cuban tried to take out a large quantity of cigars using DHL; my worry is, is there no limit on sales to a national?
Marcelino (HSA): There is no limit whatsoever; a customer, whether Cuban or foreign, may buy up to the figure displayed in the shop.
Moya (Customs) ...a correction of the minutes for Marcelino). Irrespective of the fact that sales to nationals are not regulated, behind it there is always some illegality. We are reviewing the loophole left in Resolution 41. No more than one crate per month can be exported via DHL. A meeting will need to be held with DHL to look into this matter.
Meeting of 14th July 2004
Marcelino (HSA): When prices were lowered in 2002, the shops complained that in European countries in Spain cigars were cheaper than in Cuba. So then it was proposed that prices should be lowered. At the rate of exchange between the dollar and the euro, prices were between 45% and 60%.
Marcelino (HSA): If we have evidence to show that this price increase is proving prejudicial rather than beneficial to us, in the case of [?] the chains [?] we should raise it [?]/take it up with [?] the MFP and the MINCIN. Moreover, the increase should not be linear since not all the bands have the same turnover.
Mons (Casa del Habano): 80% of the cigars is sold to Caribbean and US tourists, it is not for Europe. The economic situation, as I see it, is that the price should not have been raised: sales are half of what was being sold, we are failing to sell between 600 and 700 thousand dollars what we are failing to sell today we will not recuperate tomorrow.
Marcelino (HSA): It is true that we sell a lot of cigars to tourists from Mexico, Panama and Costa Rica, but if we are able to demonstrate numerically that this increase is proving prejudicial to us they will understand since the country does benefit from the influx of money [currency?].
i) The parties were all acting in concert concerning every aspect of the domestic market, including sales to foreigners who would be taking the goods out of the country.
ii) There was a common concern that the domestic market should be a source of hard currency which means substantial sales from the Casas.
iii) It was known that there was a relationship between the domestic market sales and sales made abroad the clear implication is that it was known that domestic sales would affect the market abroad.
iv) HSA were calling on the "chains" to control invoices consistent with what I have said earlier about control over these. Of course control over invoices would be important for anti-counterfeiting but it is potentially equally important where "grey" goods (i.e. those going for parallel import) are concerned.
v) Sometimes unlimited quantities were sold by the shops.
The US$25,000 limit
The 2% royalty on sales by Casas
Provisional Conclusion as to consent
The contrary arguments as to consent
 It is also clear on the evidence that by the date of the Consignment at least, Mr Kenyon knew that serious objection was being taken by HSA to his activities as an importer of habanos into the UK.
 Some time before the purchase of the Consignment, both Mr Kenyon and Mr Craggs had been made well aware of HSA's hostility to their attempts to use the trade marks for the purpose of importing habanos into the UK: D8/872 and 875-876.
 Furthermore, as a relatively minor matter under the issue of consent, I have noted the evidence relating to the High Court action taken in November 2003 against Mr Kenyon's friend Mr Casdagli who was the defendant in another 'parallel imports' case brought by HSA and H&F in respect of cigars imported into the UK from Central America: see X 13. Mr Casdagli gave evidence and seemed a fair witness. He said that Mr Kenyon was told of all the material facts relating to that case: D7/695-696.
Now, the changes that took place in Habanos SA when they became in theory a joint venture company and the Spanish purchased for over $500 million 50% of the company, the Cubans in order to develop an alternative sales avenue set up the Casa del Habano division where they were able to develop through retail outlets other sales which would take place without having to share the benefits of that with the Spanish. Now, it was those opportunities and the changes that took place in Habanos SA which led to us having the ability to be able to go and do the sort of things that we were doing and which was given their direct encouragement by way that we have all been describing and which the paperwork supports. It is on that basis that we believe quite clearly, and legal advice we have taken on its supports this, that the paperwork that is in place is there in order to appear not to tread on the toes of the distributor network which is shared with the Spanish. But the purchasing that takes place, in particular in the Cubans much needed foreign currency. It is on that basis that we commenced our purchasing directly through Quinta Avenida and for which we have obtained discounts and were developing a good commercial relationship until we had these problems back in the UK where the local distributor took it on themselves to claim counterfeit.
Lord Justice Lloyd:
Lord Justice Chadwick: